Representing Yourself In Court (CAN): How to Win Your Case on Your Own

An Introduction to Representing Yourself in Court

When you go to court you are asking a complete stranger (a judge) to make a decision about something he or she probably knows less about than you and the other party do.

Many of my clients have talked to me about wanting justice or wanting things to be fair. Who wouldn’t want this? But going to court is not necessarily going to mean that what you think is fair and just is what the law and the trier of fact (the judge) in your case think is fair and just. The law is a blunt instrument for sorting out disputes. There are finer, more precise tools available, such as mediation. Try them first.

Going to court should be a last resort. Before going to court, you should have tried negotiating a solution to whatever it is you’re dealing with; you should have also looked into alternatives to court such as mediation. Only when less adversarial options cannot offer a solution, is it time to seriously consider court. In other words, when there is no other way to solve a dispute, court is your last resort.

More and more self-represented people are appearing in court. (In some civil courts more than 50 percent of litigants are pro se.) Lawyers’ traditional bill-by-the-hour model and high retainer fees are simply out of reach for a large amount of average, working people.

The influx of non-lawyers into the Courts has necessitated change. Judges and court staff are gradually accepting that pro se litigants are here to stay. Self-help resources are increasingly available, and courts are more responsive to the needs of pro se litigants.

But changing the court system is not easy. Our courts rose out of exactly what their name suggests: a king’s court. The language, rules, and procedure of going to court today hearken to a system that has roots in medieval England and which extend back to ancient Rome.

Today, you can still see barristers in black robes with ribbons around their necks bowing to a judge, hear lawyers throw around Latin phrases on a daily basis, and witness a formality and etiquette that has long since died out in other forms of society. Court is a hierarchal model with a judge sitting in an elevated position looking down on everyone else.

Appearing in court is intimidating. It can feel overwhelming. Here’s a secret: Most lawyers are nervous going to court, and I’m no exception.

The antidote is preparation, or knowing what you’re heading into and being ready for it. I like to break the process down into steps. When I’m at step one, I worry only about step one because I know that although step two is around the corner, I’ve prepared for what’s in front of me at the moment. Preparation is not only the way to battle nervousness, it’s also the key, the supreme weapon in fact, to winning your case.

The purpose of this book is twofold:

1. To give you an overview of the steps in the court process so that it does not feel as overwhelming when you represent yourself. It will help you to break the work you’re going to need to do down into manageable steps with clear options. Because this book is an overview of going to court in Canada it is not specific to law in a particular province nor does it try to cite all the local rules on each topic. If I do quote any law, I will cite British Columbia law simply as an example. (Note that Federal and provincial law with the exception of Quebec is based on English common law. I am not licensed to practice law in Quebec and this book therefore does not cover how to go to provincial court in Quebec.)

You should always check what the specific law is in your jurisdiction and research how it applies to your unique case. As an overview, I hope this book will offer perspective as you do further research and choose your options. In other words, it is meant as a large scale map to help you see the big picture so that you can then zero in on what you need to know and do.

2. To give you a view into a lawyer’s working office so that you can use some of the tricks of the trade that lawyers use. As in any profession, lawyers use certain tools and have certain methods to save time, to stay organized, and to smoothly advance a case. For example, most lawyers assemble a book for each trial called a Trial Book. They don’t share these books with their clients; they are just a tool for the lawyer, and it’s the lawyer’s blueprint for a trial. I’ll help you to make your own Trial Book so you can represent yourself and use this tool too.

This book is designed to address civil legal claims only. For example, the kind of litigants I had in mind while writing this book were family law litigants, small claims, and housing/eviction cases. (These are classes of litigants that are increasingly going to court or an administrative tribunal without a lawyer.) Sometimes I will talk about other kinds of civil law cases, but this book does not apply to criminal cases. As well, the focus of this book is for assistance with a judge-alone trial, not a jury trial. Jury trials are very difficult to run for self-represented persons. Also jury trials may not be available for your kind of case (this will depend on your jurisdiction).

There are advantages to having a judge, who will likely be more experienced with self-represented persons and will have had training on deciding matters presented by self-represented persons, decide your case. (There may also be advantages to having a jury trial in your particular case and you would be well advised to seek the assistance of a lawyer in deciding whether to proceed with a jury or a judge-alone trial). My personal experience is with judge alone trials.

If you do have a jury trial, this book will still be helpful but you will need to do further research into the mechanics of a jury trial. I talk more about jury trials in Chapter 7: Pre-trial Procedures, Preparation, and Your Trial Book.

Because this book is an overview of the process of representing yourself in court, you will have to read up on the laws specific to your case. I will explain how to do that in Chapter 2: Learning the Law.

I also encourage you to read other books about how to present a case at trial. Different lawyers have different styles and different approaches. Many of us have concentrated on certain areas of law. For example, my background is mainly in family law, housing law, and professional ethics, though I’ve worked in a number of other areas too. Other lawyers may concentrate on, for example, personal injury.

Some books are written by university professors, not lawyers who appear in court. There is no comprehensive, ultimate guide, but take what you need from this and other resources so that you too will walk into court nervous, yes, but prepared.

1. Vocabulary

Words are a big deal in law. Whole trials are about the interpretation of words. If there is a word in this book you don’t understand, check the glossary in the download kit first. That will offer a basic definition. (If the word is important in your case, make sure you understand how that word is interpreted according to the law and case law in your jurisdiction.) If you still are unsure about a word in this book or in a legal resource, check a good law dictionary such as Black’s Law Dictionary or Canadian Law Dictionary by Stephen Couglan et al.

2. Who’s Who in the Court Process

You’ll need to know who the people involved in the court process are:

• Plaintiff: The person who started the court case. Sometimes the plaintiff is called the claimant, complainant, applicant, or petitioner.

• Defendant: The person served with the court case. Sometimes the defendant is called the respondent.

• Stenographer (also called a court clerk): The person who records and transcribes the trial. This is done in case an error is made and an appeal is filed. It is usually possible for a party to listen to the recording of a hearing or to order a transcript of the hearing.

• Interpreters: Interpreters are often available if you (or someone else) are not comfortable proceeding in English.

• Justice of the Peace: Justices of the Peace are delegated certain powers to perform judicial duties. For example, a Justice of the Peace may hear a Small Claims Court matter in British Columbia. A Justice of the Peace should be afforded the same courtesy and respect as a judge.

• Registrars and registry staff: When you go to a courthouse, there will be a registry where court papers are filed and kept for civil matters. Practically, this means there will be a location where you will have to stand in line to speak to registry staff.

The staff who accept court papers for filing at these court registries are the gatekeepers for the court and if your papers are not in order, they may return them unfiled. Often, court staff can give you information about forms that you need to file. (Note that they cannot give you legal advice.)

Tip: Treat registry staff, no matter how they treat you, with respect and courtesy. Sometimes registry staff can seem impolite. Trust me that keeping the registry staff on your side is a point in your favour. After all, they might share a lunchroom with your judge’s clerk, or even your judge. Treat them well.

• Sheriffs: Peace officers are responsible for the protection of the courts in many provinces. They transport prisoners and can be seen standing in court to make sure order is maintained. If your cell phone rings, a sheriff will probably be the one telling you to turn it off.

• Judge: The judge is in charge of the court proceedings. A judge decides what evidence will be allowed, what motions may be heard, and how the case proceeds. At trial, if there is no jury, the judge applies the law to the facts he or she believes and makes the decision on the case.

Judges are supposed to be impartial. This means, they should only decide the case on the evidence presented before them and not some preexisting bias they may have to one party or the other. Judges, like umpires or referees in sports games, make decisions on how the hearing or trial progresses. A judge might help you with the rules of court. However, a judge also might choose not to help you.

One thing a judge can never do is give advice about your case. Only lawyers can provide legal advice. How willing a judge is to help you with Court Rules and procedure often depends on the judge you happen to get. Some are more willing than others to be helpful to a pro se litigant. In my experience, the trend is towards judges increasing in helpfulness to unrepresented persons.

Usually, you cannot choose your judge. Judges are usually assigned to your case based on the scheduling needs of the courthouse.

Judges belong to a particular court. For example, in British Columbia, there are judges who belong to the Superior Court, the Provincial Court, and the Court of Appeal. There are also federal judges who sit on the Federal Court.

Judges cannot:

• Deny your right to be heard. They can limit presentation of argument and evidence to what is material, relevant, and admissible. While judges will want to keep the process moving along, they have to give you a chance to try to prove your case.

• Talk to one side without the other being present unless there are exceptional circumstances at hand. This is called ex parte communication. It is considered unfair. When a case is, for example, very urgent, judges can hear from one party during an ex parte hearing. An ex parte hearing happens when one side does not give notice of a hearing to the other side either because the other side cannot be notified or because there is some emergency situation and notice would defeat the purpose of the relief sought (for example, if notice would cause the other side to destroy evidence), or it is impractical because of the urgent nature of the situation (for example, the other side is on the way to pick up the children and take them out of the jurisdiction). See detailed discussion of Ex Parte Hearings in Chapter 6: Motions and Temporary Orders.

• Refer you to a specific lawyer or recommend a specific lawyer to you.

• Give you legal advice.

• Violate the ethical rules judges are required to follow. For example, in British Columbia, Provincial Court judges are guided by the Ethical Principles for Judges and complaints about judges are looked into by the Chief Justice, who is responsible for supervising Provincial Court judges.

In a jury trial, the jury, not the judge, is the trier of fact. The jury decides what evidence and witnesses to believe and makes the decision in the case.

3. The Court Process, a Big Picture Overview

Once you’ve tried alternatives to court such as mediation, negotiation, and arbitration, you will need to understand what you’re getting into before you leap in. Learn the law in the area you will be going to court; the following sections give a big picture overview of the process, from start to finish. These topics will be covered in more detail in later chapters.

3.1 Step one: Filing in court

Once negotiations have broken down or perhaps because a limitation date is approaching, the first step for a plaintiff (the person starting a court case) is to file legal papers in court. Sometimes these papers are called, among other things, Statement of Claim, Petition, Complaint, or Notice of Claim. For convenience, I will simply refer to the papers that start a lawsuit as a Statement of Claim.

A Statement of Claim contains a description of the facts as you allege and what you want the Court to do (e.g., give you custody of your children, or perhaps pay you money in damages to compensate you for a loss).

If you are the person filing these papers you will be called either the plaintiff, the claimant, or a similar term. If you have been served with a plaintiff’s claim, you are known as the respondent (because you are responding to the case), or defendant, or other term. Together, the plaintiff and the defendant are the parties to the court case.

If you disagree with the plaintiff’s claims, your first step will be to file and serve on the other side your response, also known as an answer or defence (for ease of reference, I will call the document your defence). There are strict deadlines to do this. For example, if you were served with a notice of civil claim in British Columbia, your response must be filed and served within 21 days after service (Rule 3-3 BC Supreme Court Civil Rules).

When you file your response, it is also the time to make any claims you may have against the plaintiff. These are called counterclaims, and the plaintiff will have an opportunity (and a deadline) to respond to any counterclaims.

3.2 Step two: Serve your Statement of Claim or Defence

Court rules will tell you what is required to deliver your Statement of Claim and other required papers (e.g., some jurisdictions also require a summons to come to court) to the person you are suing. This is known as service. Typically, service to start a court case is required to be done by a third party who is not a party to and does not have any interest in the case. Frequently, service must be made by a process server such as a sheriff.

If you are a defendant, you will serve your defense on the other side after filing it at court.

3.3 Step three: Prepare, file, and serve any urgent or other pre-trial requests to the court

A request to the court is known as a motion. If some aspect of the case is urgent, it may be possible to go to court before a trial (trials often take a year or more from the start of the case, although some matters are quicker, for example, evictions). Typical urgent motions may be to ask the court to preserve property if there is a risk that it will be disposed of or if you need disclosure of documents or other evidence for your case. Another reason to make a motion early on is if you believe the other side has failed to make a valid legal claim; this is known as a motion to dismiss. Motions may be made shortly before the trial.

3.4 Step four: Trial preparation

Review and research the law, interview your witnesses, gather the evidence you are going to use at trial, and develop a theory of your case. Keep all information organized in files and begin to develop your Trial Book.

3.5 Step five: Discovery

Discovery is the process whereby you and the other side exchange the evidence that is relevant to the claims, counterclaims, and defenses in the case. It is a guiding principle of litigation that you and the other side have access to the evidence that either proves or disproves the important facts in a case.

For example, if you are suing someone you paid to paint your house but who failed to complete the job, some of your evidence shared in the discovery phase may include a receipt to show how much you paid and any contract you and the painter signed.

Discovery not only includes exchanging documents, it can include exchanging photographs, recordings, and anything else you will rely on at trial to prove your case or disprove the other side’s case. The discovery process includes tools to gather information such as examinations for discovery (an opportunity to ask the other side or witnesses questions under oath).

3.6 Step six: Negotiation and mediation

As discovery uncovers evidence, as each side learns more about the strengths and weaknesses of their case, and as the parties’ emotional feelings may cool or wear down, new opportunities for a settlement will present themselves. Negotiations may take place by letter or at in-person meetings. Using a trained mediator to facilitate discussions is a very helpful tool at this stage.

3.7 Step seven: Pre-trial conference

Often, court rules require the parties to attend a meeting or hearing with a judge before the trial. The purpose of this meeting is for the court to ascertain whether the parties are ready for trial. It can also be an opportunity to settle or resolve some or all matters in the case.

3.8 Step eight: Trial

Trials normally do not proceed until discovery is complete (the parties have shared all information required by court rules and are satisfied that discovery is complete) and the court is assured that you are ready for trial. Frequently, a trial will take place anywhere from six months to several years after a Statement of Claim was first filed. (Evictions are a notable exception. They may only take a couple of months from filing to trial.)

Trials may last from a couple of hours to a couple of weeks, depending on the complexity of the case, amount of evidence, and the number of witnesses.

3.9 Step nine: Appeals, enforcement of court orders, and modifications

If you’ve won your case, you still might need to go back to court to ask the court to make the other side pay what they’ve been ordered to pay. You may, for example, need a court’s permission to garnishee a bank account.

If you’ve lost, you might be considering whether an appeal would be successful or not.

At some point in the future, an outstanding court order may no longer be appropriate and you may wish to change it. This is known as a modification application.

4. Administrative and Quasi-Judicial Proceedings

Sometimes the decision-making power for certain kinds of disputes does not lie with the provincial or federal court system. Instead, it will lie with an administrative tribunal. For example, in British Columbia housing cases such as evictions are decided by a Hearing Officer at the Residential Tenancy Board (RTB).

Administrative tribunals generally have their own rules which are similar to court proceedings insofar that the rules will tell you what steps to take in the legal dispute (procedure), and they are similar to court proceedings. However, administrative proceedings are often less formal than court and may have much shorter timelines. For example, you often will sit at a table with the Hearing Officer in an administrative tribunal rather than standing before a judge in a courtroom. Frequently, rules of evidence are relaxed.

This book will help you with administrative proceedings too. As with any legal dispute, you should first read the rules that apply to the administrative proceeding. You may then find sections of this book helpful when preparing for your hearing such as creating your own Trial Book.

5. Is It a Good Case?

Whether it is a good case is the hardest question for a pro se litigant to answer. You might be 100 percent certain that you are morally right but that doesn’t mean a court will decide the case in your favour. See Chapter 2 for a discussion of applying the law to the facts of your case. The bottom line: Generally, you should not go to court unless the odds are at least 50 percent or higher of winning.

The way I like to think of it is like this: Ask yourself, is it likely that you will be better off having gone to trial than not? Ideally, to help you make that determination, get legal advice. You may be able to find lawyer referral services who offer a discounted fee for an initial consultation with a lawyer. Or there may be a service in your area where you can speak to a lawyer at the courthouse for free. If you can’t get legal advice, do your research carefully and factor in the possibility that, in any case, you might lose. Are you ready for